Friday, July 29, 2016

For my Verdict column this week, I discuss a disparity in abortion arguments. The disparity is that the reasons that most people have for deciding to terminate a pregnancy (economic reasons, relationship reasons, emotional reasons) are different from the reasons that pro-choice feminists have for defending the right to terminate a pregnancy (the bodily integrity interest of the woman in being free from an unwanted physical occupation, sometimes coupled with the view that a fetus is less than a full person). Although the reasons occasionally align more precisely--such as where a woman seeks an abortion to save her life but wishes that she could have the baby--in general, a woman who seeks an abortion truly wishes for the embryo or fetus to die (rather than just to be free of the unwanted physical intrusion). Yet despite the disparity, I argue that the fact of the physical intrusion renders the woman's reasons for wanting to terminate less important than they would be in the absence of such a resulting physical intrusion.

The argument might seem puzzling if we consider other zones in which people can make decisions for some reasons and have those decisions honored, while they cannot make the same decisions for different reasons without running into legal trouble. To take one example, an employer (of a sufficient number of employees) may decide to fire an employee because the latter is sloppy or is widely disliked by others at work, but the employer may not (lawfully) decide to fire the employee because of the latter's race or sex. Similarly, an attorney may exercise a peremptory challenge to remove a juror from the venire because the attorney finds the juror unpleasant or because the juror is unemployed, but the attorney may not, as a matter of constitutional law, remove a juror because of the juror's race or sex. Why may women terminate pregnancies for bad reasons, while employers and attorneys may not make decisions, respectively, about whom to fire and whom to eliminate from juries for bad (illegal) reasons?

Some people would say that the answer is that women should not be able to terminate for bad reasons. For instance, the Pennsylvania law that was challenged in Planned Parenthood v. Casey included a provision prohibiting sex-of-the-fetus-motivated abortions, although Planned Parenthood chose (strategically) not to challenge that portion of the law. I would argue, however, that if the consequence of denying a person the right to make a choice, even for a bad reason, is that the person now must live with an extremely intrusive invasion of her bodily integrity, then the law must not deny the person the right to make the choice, even though the reason for it may be bad. Here's an analogy: people ought to have the right to decide with whom to have sex based on whatever reasons matter to them, regardless of how offensive, because the alternative is that people could be forced to have sex against their will, which is morally and legally unacceptable.

One way to manage the "wrong reasons" for intimate decisions dilemma is to hold that while people have the right to terminate a pregnancy for any reason and to decide not to have sex with someone for whatever reason they please, they do not have the right to have all the information on the basis of which they might like to make such a decision. This might mean that if a doctor suspects that a patient is planning a sex-selection abortion, the doctor could decide not to tell her patient the sex of the fetus (and the law, more generally, might keep such information from pregnant families, to the extent that sex-selection abortion became a problem in this country). Likewise, a man hoping to have sex with a woman or another man might omit information (such as racial background) that he suspects his partner might use as a basis for rejecting him. By keeping such information from people, at least in cases where we believe the people are not independently entitled to the information, we are able to simultaneously honor the right to avoid unwanted internal occupation (whether through pregnancy or sex)--no one would have to remain pregnant or have sex against her will--while precluding the person from making the choice for the wrong reasons.

There might be practical obstacles, of course, to keeping information from people (and some information is undoubtedly pertinent and unfairly kept from a pregnant woman or potential sexual partner). But by separating out the "knowing" of the information from the decision to terminate a pregnancy or to refuse a sexually intimate association, we can see the difference between a right to a sex-selection abortion and the right to an abortion, no questions asked, regardless of what the woman does or does not know.

Hiring and having people on a jury are far less intimate involvements with people. For that reason, it is acceptable to judge a person's rationales for firing or peremptorily challenging people. With a less intimate association on the line, the reasoning process becomes more salient and a more appropriate subject for judgment and legal prohibition.

Thursday, July 28, 2016

It is by now old news that Donald Trump's business practices have, shall we say, raised a few eyebrows. He not only has a history of suing and being sued beyond anything that has been seen before in U.S. politics, but he is completely unrepentant about the bare-knuckle tactics that he uses.

For example, multiple news sources (for example, here) have reported that Trump has a long track record of signing contracts and then renegotiating after the fact to try to change the terms of the deal, after the other party has already performed as promised.

I recently discussed Trump's approach to contracts in the context of his dispute with Ted Cruz and "the pledge" that all of the Republican presidential candidates signed to endorse the eventual nominee. Here, I want to discuss the more general question of what Trump's bellicose approach to his business practices suggests about the way that he would govern.

Trump might be saying that it would be good to put someone in charge of writing and enforcing the law who is an expert at breaking the law. Popular culture is filled with stories (many based in reality) of bad guys who -- after a profitable career on the wrong side of the law -- use their knowledge to detect and punish other people's wrongdoing. Computer hackers, for example, sometimes cross over to work with law enforcement. (Usually, however, their change of heart is nudged along by the possibility of imprisonment.)

Is Trump holding himself out as a modern-day Cary Grant from "To Catch a Thief" -- a rogue who can now use his knowledge of the shadowy areas of the law to achieve something other than personal financial gain?

Trump has suggested as much, saying during the primaries that "I have great people" (of course) who allow him to pay as little as possible in taxes. Trump was characteristically immodest: "Who knows the system, who knows the tax
code better than me?" Actually, he had just said that it is the "great people" whom he hires who know the tax code, so he would have to believe that he can get those people to work for the government to reveal the secrets of tax minimization.

But why would those people be willing to do so? If, like Trump, they view all transactions as a matter of gaining as much advantage as possible, they would either have to be paid a great deal of money to work for the government, or they would have to have some other self-interested reason to work for a Trump IRS.

If there really are legal geniuses working for Trump who can wring every penny out of the tax system, their market value would be far above federal pay grades. We know, however, that the last thing the Republicans in Congress are interested in is providing more funding for the Internal Revenue Service, or for tax collection more generally. So Trump's tax guys are unlikely to be interested in government work.

The only other way to get such people to share their secrets with the government would be to find the ones who might be worried about being prosecuted some day for illegal activity. Maybe Donald Trump would sign pardons to get those people to work for relative peanuts in a government job, but if that is his plan, he has not said so.

The fundamental problem for Trump is that he wants to claim that there is a bright line between legal and illegal tax strategies, and he (and his great people) know exactly how to find that line, whereas no one else does. This is a fantasy, and he knows it.

In fact, his stated reason for not releasing his tax returns (as every presidential candidate has done since 1968 -- a year that Trump has now embraced enthusiastically as a "law and order" candidate") is that there are too many gray areas in the tax law. He claims that, after the audits are over, he will gladly release his returns. But why wait? If the law is clear, and he is on the right side of it, then he has nothing to worry about.

Trump believes that he is being treated unfairly by the government. But if he is right that he has never crossed the line, then he could shame the IRS's auditors by getting ahead of the story and showing the world just how ridiculous their suspicions are.

In reality, Trump is playing the "I've never been caught" game. (We can leave aside for now the times that he has been caught.) We would rightly laugh at a person who says, "I've obviously never exceeded the speed limit, because I've never gotten a ticket." Yet Trump (like Mitt Romney before him) relies on the claim that he uses "every single thing in
the book" to "pay as little as possible." He even calls it "the American way."

In other areas of the law beyond taxes, Trump makes similar claims. He shows no shame about using the bankruptcy courts to leave his investors and former partners with losses, while enriching himself. Famously, he has hired illegal immigrants to work for him and then refused to pay them.

Now, however, Trump is saying that he should not be judged negatively for any of these things, because he was only doing what any good businessperson would do. Why not find every angle, and pursue every advantage? If you do not do so, he says, you are stupid.

After the Supreme Court's ill-conceived decision in 2014's Hobby Lobby case, I asked: "Will There Now Be a Gold Rush of Corporate Religious Claims?" The idea was similar to what Trump says about his business practices. If the Court says that sincerely held religious beliefs are a potential avenue to reducing costs (my example was a religious objection to minimum wage laws, which is a claim that has actually been made in court), then why would a company not feel compelled to pursue that route?

Beyond the existing law and how to exploit it as written, of course, Trump's version of the American Way suggests that businesses should do everything possible to change the law to their advantage. Should they stop just short of outright bribery, under our incredibly porous campaign finance laws? Why should they? The risk of breaking the law, being caught, and being punished are in Trump's view just a part of the costs of doing business. What kind of chump would stop until it was absolutely clear what he could get away with?

Maybe, however, Trump is saying, "I know the weaknesses of the laws. Let's now pass laws to stop people like me from going over the line on taxes, on bankruptcy, on environmental damage, on exploiting subcontractors and workers." He suggests that the reason he refused to take campaign contributions (although he actually was taking campaign contributions) was that he wanted to be above the corrupting influences of money.

But because he has flatly refused to guarantee that he will discontinue involvement in his business interests while he occupies the Oval Office, Trump makes it especially difficult to believe that his purpose is to be the former thief who shows the cops how to stop illegal activity. He believes that it is his duty to be a smart businessman and thus to use every advantage to maximize his wealth. As president, he would simply have more access to the levers that would create even more profitable advantages.

Even if he did put up a meaningful firewall between his political activities and his personal greed, Trump has done nothing to suggest that he thinks there is anything wrong with what he has done. He has not said, "You know, I discovered that it's incredibly easy to steal wages from workers, but it makes me feel dirty, so I want to guarantee that that never happens again."

Similarly, Trump has not said that the concept of bankruptcy is a good one in some circumstances but, because the system is being abused by people like him, it should be changed to prevent such abuse. He has not, in other words, suggested that his goal is to shut down the shady-to-illegal practices that he has engaged in for his entire career.

Trump uses the Business 101 notion of minimizing costs as an all-purpose justification for everything and anything that he has done. When he has been caught going too far, he has engaged in scorched-earth tactics to prevent the weight of the law from reining him in. He attacks judges who rule against him, and he threatens to "open up the libel laws" to punish news organizations that bring his activities to light.

These are not the words or actions of a person who has suddenly decided that he is tired of the ugliness of the world and wants to use his skills to make it a better place. He seems only to be interested in justifying everything he has ever done by insinuating, "Well, you'd be stupid not to do it, too, if you could get away with it." And that tells us everything that we need to know about how Trump's business "expertise" would inform his thinking, if he is ever allowed anywhere near the White House.

Harry Truman lived by the maxim: "The buck stops here." Trump would replace that with: "Whatever I can get away with."

Wednesday, July 27, 2016

{Note from Michael Dorf: On Verdict, I have a new column analyzing the difference between "law and order" as used by the likes of Donald Trump and the "rule of law." This guest post by William Hausdorff seems an appropriate companion piece. In case you missed it, I highly recommend Hausdorff's July 4th guest post, where you can also find biographical info.}

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Trump, the Salem Witch Trials, and Alternative Universesby William Hausdorff

One doesn’t have to be an American exceptionalist who extols America’s unique place in the world to recognize that the Declaration of Independence and the Constitution rank among the great achievements of the Enlightenment. The explicit assumption underlying their development was that people, acting rationally, had the ability and duty to control their own fate.

But these achievements stand in stark contrast to what had occurred only 80 years earlier, in one of the darkest chapters of American history, the Salem witch trials. There in Massachusetts, in what is often considered the triumph of irrational thought, women and men were hanged for witchcraft. People were perceived as powerless, with their behavior controlled by outside malevolent forces.

Yet the Trials can also be considered a rational response, within the context of a different view of reality. If you are convinced that bad things happen because people are literally possessed by the devil, and this view is endorsed by well-educated, elite authority figures (in the case of Salem, most notably the prominent Puritan minister Cotton Mather), burning or hanging them may be a very reasonable response.

Which brings me to Donald Trump and last week's Republican convention. As sketched out clearly during Trump’s irresistible rise to the Republican nomination, and vividly painted in apocalyptic colors at the convention, there is an alternative universe as sinister as that seen in Salem, Massachusetts. In that universe, Trump is the only one paying attention to the “real” problems—“uncontrolled” immigration, loss of jobs overseas, government's inability to stop ISIS-inspired terrorism. Within their alternative universe, “others”—Latinos, Muslims, Chinese and other foreign governments, traitorous public officials—are largely responsible.

The Trump-managed Republican convention presented a view of the world that is essentially pre-apocalyptic, in which the US and “our way of life” are literally on the brink of destruction, and in which “others” hold too much power over America. Americans are powerless. This is a world, as Trump loves to say, in which “something is going on and it’s really really bad.”

In this regard, Trump is standing on shoulders of giants, as the unrelentingly gloomy perspective is merely an extension of the Republican narrative, amplified by Fox News, of the past 20 years of a world filled with dark conspiracies. The Clinton “plot” to cover up the “murder” of Vince Foster. The carefully cultivated story by the Bush administration that the Iraqi regime worked closely with Al-Qaeda, although by all accounts the secular Saddam Hussein and the fundamentalist Bin Laden were mortal enemies, to orchestrate the 9-11 attacks. The virtual unanimity of the Republican Party to deny the existence of global warming, or to deny that humans are responsible, claiming it a “hoax” on the part of the world scientists and “liberals” who want to destroy US industry and King Coal. The long-lived claim fueled but not started by Trump that the first black president isn’t actually American, that he was born outside of the US, that he is a secret Muslim, that he and Hillary Clinton are in cahoots with ISIS, as well as with people who want to kill police.

A significant portion of the US population still believes these dark myths. With that one must combine the decades-old observation, via polling surveys, that when presented with the wording of the Bill of Rights, especially the First Amendment, a sizable bloc of the population actually would vote against it, blithely unaware that it is already part of the Constitution

The fundamental issue is that this alternate universe is real for (too) many people—and it is diametrically opposed to any fact-based narrative. From their perspective, the “mainstream media” universe—as if there were only one-- is the fraudulent one. And if you live in the alternate universe, some of Trump's “solutions” point in the right direction. In other words, a simple “correction” by the mainstream press or Clinton’s campaign of each of Trump’s factual errors, and the ridiculing of Trump’s “solutions,” or saying “Trump is crazy” is not enough.

How does one reach the inhabitants of the alternate universe? From news media reports and my own conversations with Trump supporters, my sense is that many, perhaps most also recognize that Trump’s solutions are unrealistic. They are just too silly. What Trump supporters applaud, however, is their “symbolism”— Trump is finally addressing issues the mainstream parties won’t.

The first step, then, not just for the Clinton campaign but for any of us talking with Trump supporters, is to admit that some of the problems Trump highlights, even if profoundly exaggerated and framed in misleadingly apocalyptic terms, are actually real, and to take them seriously. This is where Bernie Sanders’ campaign got it, and almost won the Democratic nomination. There IS something broken in the system. We should acknowledge that it would be nice if there were simple and quick solutions.

Only then can one walk through Trump’s blatantly preposterous program, highlighting that none of it could or should really happen. Spend time, in a “teachable moment,” to discuss what is the real magnitude of the immigration problem. And that the core of his “program” flies in the face of what the US has stood for. What is the Bill of Rights? What is religious freedom? Why is it so important that science not be politicized? How the scapegoating of ethnic groups not only is wrong and dangerous, but diverts attention from the real issues. Put the focus on what Trump and the Republicans have actually done to address--or rather, exacerbate--these problems in the past, and how they are not remotely serious now.

In short, draw a lesson from the Brexit debacle—acknowledge the existence of that alternative universe. Take the issues seriously, but put them in the context of the American experiment, and then propose serious real solutions, with a positive vision people can support. There is clearly a dearth of understanding regarding the very essence of the American experiment. People stopped believing in and hanging witches. We can’t let the witch trials start again.

Tuesday, July 26, 2016

by Michael Dorf
Last week, Sherry Colb and I were guests on the radio show Main Street Vegan, hosted by Victoria Moran. The episode is now available as a podcast. The interview covered various of the subjects we address in our book Beating Hearts: Abortion & Animal Rights. Here I want to focus on just one of those topics to expand upon a question that arose during the discussion.

Picking up on a topic addressed in chapter 4, at roughly the 46-minute mark of the show, Victoria asked us what we thought about the argument that death qua death--as opposed to suffering--does not harm those animals that lack "life plans." I began to answer that the argument is made by Peter Singer in his landmark 1975 book Animal Liberation and in other places and that a related argument is made by Tom Regan in his 1983 book The Case for Animal Rights. As I was just starting to say that Regan uses different terminology from Singer, Sherry jumped in to make clear to listeners that Regan does not adopt Singer's language--Regan talks about "subjects of a life", whereas Singer talks about "life plans"--nor does Regan make the argument that animals worthy of moral consideration are entitled only to be treated humanely. After the show was over, Sherry and I talked it over and realized that we weren't disagreeing, just making complementary points.

(1) In chapter 4, we offer a variety of reasons why life planning should not be the key to a right of sentient animals against being killed. Here are three of them:

(A) The enormous number of mammals, birds, and fishes used by humans for food are almost never treated humanely, so the argument that it is morally permissible to kill animals for food humanely is of theoretical but not practical importance.

(B) Most such animals are social, so even if they could be killed suddenly and painlessly, their fellow herd, flock, and school members would experience loss (as they do). Indeed, this phenomenon is routine even in the ostensibly vegetarian (but not vegan) animal industries, such as dairy, where calves are taken from their mothers almost immediately upon birth.

(C) It is by no means clear why having a life plan grounds an entitlement to continued life. Someone who has a life plan and is then killed suddenly and painlessly will not experience the frustration of her life plan, after all. She will be harmed by the same sort of deprivation as sentient animals who supposedly don't have life plans: she will not enjoy the portion of her life that was taken from her. Anyway, life planning as a criterion for a right not to be killed leads to monstrous results, such as the conclusion that it is morally permissible to painlessly kill a healthy human infant who has not yet developed the capacity to make a life plan. (If you're worried about the social impact, as per (B), imagine an orphan infant.)

(2) Singer and Regan are very different in important ways. For philosophers, the key difference is that Singer is a utilitarian, whereas Regan is a deontologist. We say in the Introduction to Beating Hearts that we don't adopt any comprehensive moral view, but it's also fair to say that our arguments tend more in the direction of deontology than utilitarianism. In any event, here I want to emphasize a different set of distinctions between Singer and Regan.

(A) Start with terminology. Regan's notion of "subject of a life" is broader than Singer's "life plan." Regan allows that sufficiently mature mammals, some birds, and maybe fishes are subjects of a life--i.e., they have lives that matter to them. With respect to fishes, I imagine that in light of recent findings, such as those detailed in Jonathan Balcombe's wonderful What a Fish Knows, Regan would put them more firmly on the subject-of-a-life side of the line.

(B) While Regan's terminology is more encompassing than Singer's, there is a downside. For Singer, an animal who can suffer is entitled not to be made to suffer (absent good reason), even if that animal, in virtue of lacking a life plan, is not entitled to avoid an unwanted but unexpected and painless death. What about Regan? (At pp 100-102 of The Case for Animal Rights)Regan clearly and unequivocally rejects the idea that death is not harmful to animals for what strikes me as just the right reason: Because whether or not an animal suffers in death, the animal is harmed by virtue of the deprivation of the remainder of his life. But only if the animal is the subject of a life, because otherwise, by definition, there is no deprivation.

Moreover, for Regan, being the subject of a life is the key to moral consideration at all. Thus, animals who can experience pain but are not subjects of a life are not, under Regan's view, entitled to avoid unnecessary pain. Indeed, Regan says (at pp 95-96) that pain, by itself, is not suffering. To suffer requires an extension over time. Although Regan does not make the equation expressly at this particular point in The Case for Animal Rights, he appears to treat being the subject of a life as necessary for being capable of suffering.

(C) To be sure, Regan also says that being the subject of a life is a sufficient condition for moral consideration but not a necessary one. He makes that point (at pp 319-21) in talking about human infants and late-term fetuses, whom he treats (at least arguendo) as not subjects of a life. Not to worry though, Regan says, because we could have other reasons for treating human infants and late-term fetuses as entitled to moral respect. Discounting their "sentimental" value to parents and others, Regan says that we might think we are not entitled to do whatever we want to human infants and late-term fetuses because we want to foster a culture of respect for the rights of individuals. Treating infants or late-term fetuses as mere things would be inconsistent with such a culture.

(D) While I reach more or less the same bottom line as Regan, I find his path there quite troubling. It seems to me--and Sherry and I argue in Beating Hearts--that the reason for not treating infants and late-term fetuses as mere things is that they are not mere things. In virtue of their sentience, they are someones, not somethings. Put differently, we don't think that it's an open question whether human infants and late-term fetuses are entitled to moral consideration. We think it is clear that they are entitled to moral consideration because of their own interests in avoiding suffering and in continuing their lives.

(E) The Regan view has the further difficulty of muddling the moral argument concerning abortion. In (C) and (D), I have used the term "late-term fetuses" but Regan actually uses the term "soon-to-be-born human beings." How soon? For us, the answer is clear: As soon as they are sentient. But if the question is what fosters respect for individuals, it is easy to see how one could find in Regan's approach a "culture-of-life" argument for the proposition that all abortions are immoral.

(3) I want to conclude by acknowledging my debt to and admiration for the work of Singer and Regan. I disagree with each of them in some particulars, but their respective landmark books are of tremendous importance.

Monday, July 25, 2016

Anyone who was looking for a change of "tone" (or something like that) after the Republican convention was quickly disabused of the idea that anything can change in the world of Donald Trump. The legitimacy conferred by being a major party's nominee is evidently not enough to alter Trump's bulldozer approach to politics.

The post-convention Trump campaign, in other words, looks exactly like the pre-convention Trump campaign. I can hardly blame anyone for hoping for something different, but this truly was wishful thinking.

But before the Democratic convention gets rolling, and before Trump issues his next fusillade of outrageous comments that will send fact-checkers into a frenzy, it is worth thinking through the post-convention tiff that has arisen between Cruz and the Trump camp. That dispute is interesting not just for the usual political reasons, but because it gives an insight into whether Republicans really think that "a deal is a deal."

By now, everyone knows that Cruz's speech at last week's convention pointedly did not include the words, "I endorse Donald Trump for President," or anything close to that. Instead, he exhorted listeners to "vote your conscience." Trump's people apparently fear that too many Republicans' consciences will not allow them to vote for Trump, so they are lashing out at Cruz.

For example, one wealthy right-wing donor -- the head of a family that is so deeply in the fever swamps that they have said that Hillary Clinton "would repeal both the First and Second Amendments of the Bill of Rights" -- apparently understands Trump's toxicity, because he "has helped fund a new effort for donors who want to defeat Mrs. Clinton, but who do not want to donate to a group that is openly supporting Mr. Trump."

It is thus politically important for Trump backers to punish Cruz for saying something that might cause conscientious voters not to choose Trump. The most obvious punishment will come through withheld donations for future campaigns. Only time will tell if Cruz made the correct calculation that conservatives will forgive and forget by the time he announces his candidacy in 2019 to unseat President Clinton in 2020. (He might not even wait until 2019, of course). My guess is that memories will be short. If Cruz truly has just signed his own political death certificate, however, I would hardly be the only person to celebrate.

And speaking of signing things, there is the matter of "the pledge" that Cruz supposedly violated. Trump's backers have been screaming (in many cases quite literally) at Cruz for violating a silly pledge that all of the candidates signed last year (and were asked to reaffirm at various times). That pledge reads, in its entirety:

"I [name] affirm that if I do not win the 2016 Republican nomination for
president of the United States I will endorse the 2016 Republican
presidential nominee regardless of who it is.

"I
further pledge that I will not seek to run as an independent or write-in
candidate nor will I seek or accept the nomination for president of any
other party."

The pledge is obviously unenforceable as a matter of law. Even so, it is interesting to examine how the two sides use arguments drawn from contract law to defend their positions, here and in other contexts.

After a convention in which a famously plagiarized speech included the phrase "your word is your bond," both Trump and Cruz are displaying that neither of them wants to be held to his word. Republicans, who make a habit of disparaging lawyers' supposed love of "fine print" and "technicalities," are discovering that contract defenses are actually important.

As an initial matter, note that Cruz has not actually violated the pledge. Because the pledge puts no deadline on the endorsement, nor the manner in which it will be given, Cruz has simply not yet endorsed Trump. But does it matter that Cruz has essentially waived that defense, making it clear that he has no intention ever to bestow his endorsement?

If that matters, then what about Trump's admission that he received an advance copy of the non-endorsement speech, yet he still allowed Cruz to speak at the convention? Did Trump waive any right to press a case against Cruz? If the argument is that the contract implicitly said, "The endorsement must come during the convention, if the failed candidate is allowed to speak," then Trump received notice and failed to protect his rights. But if no such implicit clause is read into the contract, then Trump also loses, because Cruz might yet endorse Trump (maybe on November 9?).

Much more interestingly, Cruz's defense of his non-endorsement draws from his own creation of an implicit clause in the pledge/contract. He has said that, when he signed the contract, he did not know that Trump would attack Cruz's wife or that Trump would insinuate (based on a report from the National Enquirer) that Cruz's father conspired to kill President Kennedy.

Of course, the Pledge does not explicitly say, "This agreement is void if the nominee has attacked my family." Even so, Cruz could say that this, too, is an implicit requirement of the contract, or at least that Trump's outrages provide a valid excuse for Cruz not to perform as promised.

The problem for Cruz, however, is that invoking those arguments puts him firmly in the "modernist" world of contract law. Conservative contract scholars have long pined for a return to contract formalism, in which the "four corners of the contract" are enforced. Anyone who does not like what happens as a result of strictly enforcing the contract is told, "You should have thought of that before you signed on the dotted line."

Setting aside the rank hypocrisy of Cruz's sudden conversion to modernism, what exactly would Cruz's argument entail? He might say that the "unforeseeability" doctrine excuses him from performing, because no one could possibly have predicted that he would end up being expected to endorse a candidate who would, say, tweet unflattering pictures or Cruz's wife and threaten to "spill the beans" about some imagined scandal that Trump claims to have dug up.

But was Trump's behavior unforeseeable (I ask rhetorically)? If not, Cruz might try to invoke the doctrine of "good faith and fair dealing," which is part of the contract law of almost every state in the union (with Mississippi still the lone holdout, as far as I know). When one party enters into a contract with another, the law requires both sides to act in good faith, which means not deliberately frustrating the purpose of the contract to gain an advantage after the fact.

Which brings us to Trump's approach to contracts. Cruz is a lawyer, and Trump is not. Even so, Trump's entire persona is built upon his (demonstrably false) claims to be a master deal-maker, and his supposed ability to negotiate savvy deals. Trump's approach to contract law, however, has been to negotiate deals and then to try to renegotiate them after the fact, when he is in a more advantageous position. The signed document is only the beginning of the story.

Trump, after all, has been involved in thousands of lawsuits, including suits brought against him by small businesspeople who have never been paid for their work. Trump's explanation for all of these disputes is that he has refused to pay people for shoddy work. His is the classic defense: "They didn't perform their side of the deal, so now I don't have to perform mine."

The contracts that Trump signed, of course, are subject to the requirement of good faith and fair dealing. In construction contracts, there is also standard language regarding "good and workmanlike" efforts and so on. No contract can be governed by one party's opportunistic claim that the other party's actions are not good enough.

Yet Trump's evidence for non- or poor performance seems always to boil down to, "Well, I'm not satisfied, so I'm not paying. Sue me." Because he knows that his opponents -- partly because he is refusing to pay them money owed -- have no money to hire lawyers and wait years for justice, he frequently gets away with breaching his contracts.

The irony, of course, is that the Pledge was originally designed as a public relations stunt to try to force Trump to forsake a third-party run. Last year, Republicans worried that he would flame out in the primaries (or even before the primaries began) and then self-fund a spoiler campaign in this year's general election.

After initially trying to ignore the demand to sign the Pledge, Trump finally agreed to sign. Even at that time, however, no one thought that Trump would take it seriously. The best that they could do is to use Trump's signature to try to shame him (Good luck with that!) or to undermine his support among his supporters (who seem willing to ignore much worse than some broken promises).

In Trump, we have a serial contract breacher who is now excoriating his opponent for breaching an unforceable contract. In Cruz, we have a man who joined in a doomed effort to prevent Trump from taking power, with Cruz now opportunistically invoking doctrines that he would otherwise mock, in the service of his own political ambitions.

On the sideline, we have a recent Republican nominee, John McCain, who never even signed the Pledge, and who has an even better reason to say that Trump's personal attacks nullify any loyalty that McCain might owe to his party's nominee. McCain has, however, apparently decided that his immediate political future depends on sticking uncomfortably with Trump, while Cruz's longer-term plans require him to disrespect Trump as flamboyantly as possible.

And so ended yet another week in the Republicans' version of the Hunger Games.

Saturday, July 23, 2016

The 2016 Presidential election will almost certainly have a major and dramatic impact on the political direction of the United States Supreme Court. Donald Trump has promised to nominate conservative Justices, and the list of potential nominees he made public is consistent with his pledge. Hillary Clinton, if elected, would of course nominate Justices with more liberal or progressive values. The difference is significant as there are three Justices older than 75 in addition to Justice Scalia's vacancy. Thus, the next President may well appoint two to four Justices. The future of campaign finance reform, voting rights, the scope of freedom of speech and religion, executive power, and the rights of criminal defendants, among many other important issues, are at stake.

Even apart from ideology, however, the 2016 election provides important lessons about the nature of our highest Court and the harmful effects of life tenure. First, let's assume that Trump wins. In light of all we know about Justice Ginsburg (she is 83), she would probably try to stay on the Court until after the next election no matter her physical or mental state. Without suggesting that she is in any way unfit right now, we should not allow nine of our most important public servants to determine unilaterally and without check how long they will serve. There are numerous Justices, such as Douglas and Marshall, who stayed on the bench past the time they were up to the job, and there is absolutely nothing the public can do about that. The Justices do need their independence but as every other democratic country with judicial review in the world has determined, fixed terms, mandatory retirement ages, or both, can provide that independence without the well-documented problems caused by life tenure. Although we would likely have to amend Article III of the Constitution to solve this problem, that is exactly the step this country should take.

Let's assume the next President nominates two or three Justices (and the Senate confirms them which is a big if). Those men and women may well serve for more than a quarter of a century from when they were appointed. Adding two or three liberals or two or three conservatives could determine the course of constitutional law for decades or more.

This problem is serious and has in the past led to Courts that are out of touch with current societal values. For example, the Justices delayed important aspects of the New Deal because they had come of age in the previous century, when those kinds of executive/federal programs were unthinkable. Arguably, the Warren and even Burger Courts issued decisions (Roe was issued by the Burger Court) out-of-step with the changing values of the American people when the sixties came to a close. Justice Black was confirmed in 1937 and served to 1971!

I suspect, although conservatives will be loathe to admit this, that the perspectives of Justices Alito, Thomas, Roberts (and Scalia before he died) on gay rights, faux religious liberty, and voting rights, among other issues, will fifty years from now be universally deemed absurd and antiquated. These Justices generally came of age during the time when opposition (or support of) Roe, Miranda, and other Warren Court decisions, for better or worse, generated constitutional psyches. But times have changed dramatically since then while the Justices (including Ginsburg and Breyer) often seem rooted in past arguments, values and debates.

A good example is gay rights. A necessary condition for those rights having been protected by the Court is that Justice Kennedy received the seat that Bork failed to secure and that Justice Kennedy has been acutely sensitive to gay rights--possibly because of his close personal relationship with a mentor who happened to be gay-- and Kennedy's likely observation of the indignities that person had suffered. Gay rights issues could easily have gone the other way, which I am completely confident would have astonished later generations.

Justice Stevens served into his 90's and no one is suggesting he was unfit when he retired. But our country is ill-served by an institution staffed by folks who have been doing the same job for 20-30 years or more. My father used to say that CEO's (he was one), after about ten years feel like they have heard it all before, and generally speaking lose the hunger to experiment and accept new ideas. One does not have to be a core legal realist to accept that stale legal doctrine plays less of a role than the Justices' perspectives on the real life consequences of their decisions. Do we really want Justices whose perspectives were often formed 30-40 years before they are called upon to decide hard cases?

There are good reasons we have limits on how long the President can serve, why many states have term limits for governors, and most importantly, why 49 of the 50 states (Rhode Island is the exception) do not have life tenure for their high court judges. Giving government officials who have serious and largely final decision-making power a job for life subject only to their own personal whims and political goals is an exceptionally bad idea, and right now the stakes couldn't be any higher. Conservatives have every reason to fear a Court shaped by Hillary Clinton while the same is true for liberals and Donald Trump. Whoever is elected President will seriously affect the future of this country long after they are out of office, and that reality should trouble everyone.

Friday, July 22, 2016

"Who would even think such a thing, much less decide that it was a
good idea to say it out loud in front of millions of viewers?" As I followed coverage of the Republican
National Convention, I asked myself that question over and over again.
As the doom-and-gloom oratory escalated, and the vilification of
opponents spun out of control, it was a week of wonderment of the worst
sort. Not surprising in its content, I suppose, but shocking in its
intensity.

One of the most amazing things that I
heard, however, was not yet another speaker making wild claims about
immigrants or minorities. It was when Michael Steele, the former chair
of the Republican National Committee, appeared on "The Daily Show with Trevor Noah"
on Tuesday evening. In a congenial interview otherwise notable for Steele's refusal to condemn Hillary Clinton, Steele expressed
consternation about the candidacy of Donald Trump. More than
consternation. Embarrassment.

That was certainly a welcome contrast to what was going on at the convention itself, especially coming as it did from such a high-profile Republican. Steele did drop a
bombshell, however. Even after at
least tacitly acknowledging all of the amazingly disqualifying things
that Trump has said and done so far during this election campaign,
Steele said this about Trump:

"His speech on Thursday will tell the tale of whether or
not Donald Trump is ready to be President of the United States. Everything
he does between now and November will be dictated by how he begins this
moment. So that's when the clock starts running for me."

There
you have it. Hillary Clinton's entire life is fair game for Republicans, but what Donald Trump has
said and done for the past year -- which was so bad that it led to angry
dissent from hundreds of delegates at the convention, as well as the refusal of the previous three Republican presidential candidates even to attend the convention -- can be wiped away with one evening. If Trump were to give a good speech, Steele suggested, that is
all that would matter.

I have no idea what Steele thinks
of the speech that Trump ultimately gave in Cleveland, but Trump's time in the spotlight was not a
pretty picture. It was, to put it in Steele's framing, a missed opportunity.
The money quote, as far as I can tell, was when Trump said (about
everything, apparently), "I alone can fix it." Who knows why anyone
could have expected anything different, but the reality is that -- even
grading on the debased curve defined by his campaign -- Trump did not
"begin again."

Steele is not uniquely guilty of this kind of wishful thinking, of course. The many people in his party who have been trying to have it both ways with Trump -- condemning his obvious racism, sexism, and gratuitous provocations, but refusing to say that he has finally gone too far -- have been telling us for months that they have been waiting for a change of "tone" or "style" in the Trump campaign.

Take, for example, Senator Susan Collins of Maine. As much as I want to believe the positive press that Senator Collins has received during her career -- because I truly do want to be able to think that there are still reasonable, centrist Republicans who could guide their party back from the brink -- she continues to fall back on simply indefensible arguments.

On Tuesday during the convention, Collins made news by saying that she might consider voting for Hillary Clinton. That seems like a big deal, and in a way it is. But even there, Collins tried to dodge the real issue with a half-measure: "It is more likely that I would decide to write in a candidate or choose another approach." The only other approaches that I am aware of are voting for a third-party candidate or not voting at all. So, Collins is apparently considering five options: vote Trump, vote Clinton, vote third-party, vote write-in, or do not vote. She has not ruled out any option, as far as she has said.

For people who are truly disgusted by Trump, however, the "but I won't vote for Clinton, either" approach is fundamentally dishonest. Protest votes are a fine American tradition, but for people like Collins who are treating their votes as if they matter to the outcome of the election -- which is, despite the millions of votes cast in elections, the only way to treat one's decision without descending into nihilism -- saying that they will not vote for the only other plausible candidate is really to say that they will not do everything possible to prevent the worst candidate from winning.

Collins (and many other Republicans), after all, have admitted that Clinton is highly qualified to be president. ("She’s an accomplished person who is clearly qualified to be president. I do have a good relationship with her.") Trump is not so qualified, in their view. Yet they are considering a path that could help Trump win.

To use some simple numbers, imagine that there are only 9 voters in an election, five of whom think that Trump is completely awful, and four of whom love Trump. He should lose, five votes to four. But if two of the anti-Trump voters say, "Well, I guess I won't vote for Clinton, either" she loses 4-3. (Whether those two purists vote for write-ins or third-party candidates, or instead choose not to vote at all, the result is the same.)

The Collins-like voters then go to bed saying, "Well, we're now stuck with Trump, but at least I didn't help get him elected." The problem is that they will be deluding themselves. They had the power to help prevent his election, but they did not exercise that power.

The more fundamental worry, however, is that Collins also said this: "We still have a ways to go, and I do believe in redemption." Last month, she also said this to CNN: "I would love to be able to endorse Donald Trump, but he really has to change the approach that he's taken. If I were giving him advice, I would tell him he should
own up to making mistakes. ... And he should stop insulting people."

So, having listened to Trump for over a year, as he incited hatred and attacked the judiciary and the media (and anyone else who displeased him), Senator Collins's response is that, well, she hopes he might change his "approach" and maybe stop insulting people?

My father was a Presbyterian minister, so I grew up in a religious tradition that believes in the possibility of redemption. Redemption, however, can save a person from damnation, but it does not qualify him to be president. And since mere mortals never know whether a person has been truly redeemed (the judgment of which is left to a higher power), we are still left with the evidence of a person's deeds on which to judge their fitness for office on earth.

Fortunately for everyone, Trump shows no sign of even trying to redeem himself in the eyes of those whom he dismisses. That means that Steele, Collins, and the others can now say in all honesty: "I gave him every chance. He could have lived up to a higher standard, but he chose not to. I never thought that I would say this, but I will vote for Clinton."

Maybe one or both of them will do just that. The problem is that there is no end to the do-overs that Steele's logic provides. According to him, Phase 1 ended when Trump was officially nominated, and Phase 2 began on Thursday night. But why not later decide that, hey, there is also a Phase 3, which begins the day after the Democratic convention? And if Trump fails that test, then maybe we should invent a Phase 4, because "everyone knows that the general election truly begins after Labor Day." Maybe Phases 5 through infinity begin with every moment up to Election Day.

After all, if we believe in redemption for presidential candidates as a means of washing away all that has gone before, deathbed conversions are as good as anything before then. Maybe we will finally see a generous and inclusive Trump give a speech on TV on November 7, and anxious Republicans will rejoice and say, "See, I just wanted him to change his tone! Now I can vote for him tomorrow with a clear conscience." And that is how willful blindness by good people can change history.

Thursday, July 21, 2016

by Michael DorfTonight is the grand finale of the Republican National Convention. To preserve my mental health, I have watched almost none of it. In the old days, that might disqualify me from commenting on the proceedings, but no longer. Donald Trump hasn't read the Constitution, but that didn't stop him from promising to defend all of it, even the parts that don't exist. In the age of Trumpiness, I seem perfectly suited to comment on the Convention thus far. Here is what happened:

1) The Dump Trump movement fizzled after a first day of contentiousness, so yes, Trump is actually the GOP nominee. All around the country, people are Googling "how to cook hat."

3) Each night has a different "Make America _____ Again" theme. Nonetheless, the overarching theme of the convention is that Hillary Clinton is a criminal traitor because Benghazi. And emails. Accordingly, she should be imprisoned or shot. Also, Obama is still a Muslim.

4) Donald Trump's children made speeches in which they said that their father, who inherited millions of dollars from his own father, taught them the value of hard work and making it on their own. These speeches were well-received because Trump's children are attractive and, remarkably, do not seem like they are the offspring of a narcissistic sociopath. And because, let's face it, we are grading on a curve.

5) Melania Trump gave a speech that would have been well-received and should have added to the mystery of how people who seem at least outwardly not-completely-awful can not just tolerate Trump but love Trump. However, Melania's praise for her husband and inspiring story of coming to America were completely overshadowed by the fact that she lifted some lines for her speech from Michelle Obama's speech at the 2008 DNC. This tempest in a teapot ballooned into big news because, instead of a simple "oops," Trumpworld went into attack mode, blaming--wait for it--Hillary Clinton for trying to take down a strong female challenger. Then, just hours after Trump's campaign manager repeatedly refused to acknowledge that there was any plagiarism, a Trump Clan apparatchik confessed to the copying. Trying to make lemonade out of her shame, she then used this first-ever Trump almost-apology as an opportunity to praise the magnanimity of the Dear Leader in Trump Tower.

6) On night 3 -- "Make America Cringe Again" -- some of Trump's one-time rivals for the nomination paid homage to their conquering hero, or at least talked for a while. We heard from Little Marco Rubio and Dropped-Out-Too-Soon-To-Earn-A-Nickname-From-Trump Scott Walker. The most talked-about speech of the night was delivered by Lyin' Ted Cruz, who urged GOP delegates to vote their conscience. He was then booed, apparently because the delegates believed Cruz has the sort of conscience that a normal human being has and was therefore urging them to vote for someone other than Trump. Go figure.

7) Mike Definitely-Trump's-top-choice Pence took his star turn on night 3 as well. He smirked quite a bit and also nodded knowingly a lot. He mixed standard right-wing talking points with praise for Donald Trump, whom he has seen up close for a few hours. Pence also thinks well of Trump's kids, whose speeches he has heard. Most important, Pence was definitely a white guy. He showed why, of all the people who were not Chris Cristie or Newt Gingrich who were willing to be Trump's running mate, Trump chose him.

8) Speaking of the Pence selection, yesterday's NY Times carried a story detailing the process by which Trump picked him. The supposed takeaway is that Trump's "winnowing of his initial wish list reveals a distinct blend of practicality, impetuousness and disengagement." That's true and it bodes ill for a Trump presidency, but the headline ("How Donald Trump Picked His Running Mate") fails to capture the truly amazing detail revealed in the first four paragraphs. In May, Donald Jr. asked an adviser to John Kasich if Kasich would be his dad's running mate, offering that if so, Kasich could be in charge of both domestic and foreign policy.

Then what, the adviser asked, would Trump be in charge of?
“Making America great again” was the casual reply.

Apart from showing that Junior has a sense of humor, the anecdote is revealing, and like just about everything else we know about Donald Senior, would be disqualifying in any other candidate. But with Trump, the idea that he would delegate all of his power to a less-volatile VP might be reassuring. Indeed, upon reading the story, I wondered whether Trump's own people might have leaked it to bolster support.

That is not to say, of course, that the offer to Kasich should be reassuring. Despite his campaign as a soft-hearted compassionate conservative, Kasich is in fact quite right-wing, but he is practically Bernie Sanders compared to Pence, who presumably would be the guy in charge of all policy now that he's Trump's running mate. Still, one might think, even if Pence will promote horrid policies, he won't start a global depression-inducing trade war or worse over a personal slight, the way Trump might, right?

Wrong. Junior might have been joking, but it is not difficult to imagine what he had in mind by proposing that Senior would be in charge of making America great again--namely, running his mouth. So while Pence might recommend, say, not imposing a 45% tariff on Chinese goods, his boss would shut him up. If you think that Trump would be capable of taking advice from, much less being overruled by, Pence, you didn't watch the running-mate rollout speech or the 60 Minutes interview. Trump showed that "Mike Pence" is simply Hoosier for "Chris Cristie," which in turn is Jersey for "guy standing awkwardly on the side while Trump brags and free associates." Also, after initially unveiling a Trump/Pence sign in which the T was penetrating the P, the campaign settled on a simple name over name sign. Needless to say, the "Trump" is in a larger font than the "Pence."

9) It all comes to a climax tonight, when Trump gives a speech accepting the nomination. I will be sure to miss it.

Wednesday, July 20, 2016

Many Democrats are anticipating a big night on November 8. Although the inevitable noise in the polls surely gives Democrats heartburn, the embarrassing spectacle of the Republican National Convention in Cleveland this week must surely be putting smiles on the faces of Democratic strategists and candidates (and their supporters) everywhere.

Although there is still little reason to expect that the House will flip to the Democrats this year, the odds certainly look promising for Democrats to retake the majority in the Senate. As far as it goes, that makes 2016 look like a good year for the Democrats, which was probably going to be a good year even without the Republicans' full-on meltdown during the presidential nominating process this year.

But even if things go very well for Democrats in the general election, what happens next? In my new Verdict column today, I describe how the Democrats' majority control of the Senate will be short-lived. The underlying fact is that the last three national elections have been one-sided affairs in the Senate, with Republicans electing many weak candidates in the 2010 and 2014 mid-terms, and Democrats electing some very vulnerable new senators of their own -- for example, Heidi Heitkamp of North Dakota, who won in a red state by less than one percent of the vote during Obama's big reelection win -- in 2012.

As each of those waves of senators comes up for reelection in 2016, 2018, and 2020, the partisan breakdown is stark. This year, Republicans have to defend 24 out of 34 seats that are up for election. In 2018, it will be the Democrats who have to defend 25 out of 33 seats, and then the Republicans will have 22 out of 33 seats to defend in 2020. Even with strong candidates, those imbalances almost always portend the loss of a few seats by the incumbent party. The demographics of general versus mid-term electorates further exacerbates the problems that incumbents will face in each of these cycles.

The bulk of the analysis in my Verdict column addresses just what the Democrats can expect to accomplish during the next Clinton presidency. Even with a majority in the House, but especially without it, the 2018 Senate map should tell Democrats to try to get everything done as soon as possible after Clinton takes office. After an inevitable mid-term reversal in November 2018, there will be nothing but gridlock for the final two years of Clinton's first term.

The question that I want to address here is how the Democrats should approach their dead-in-the-water incumbents during 2017 and 2018. Given that virtually none of the doomed Senate Democrats can be expected to be realistic about their chances -- or, to put a nice spin on it, given that each will surely view this as "the fight of my life" and will refuse to go down quietly -- what should the Clinton White House and Senate Democratic leaders do about their soon-to-be-former Senators?

In terms of Political Strategy 101, this might seem to be an easy call. Parties make cold-blooded decisions all the time, pulling resources and support from candidates who have no chance of winning. But my concern here is not with electoral strategies but rather with how to prevent the doomed Democrats from effectively undermining the Democratic majority during the two years that it will exist.

One type of person that I have in mind is former Senator Blanche Lincoln, a two-term Democrat from Arkansas who lost her reelection bid during the Tea Party wave of 2010. (The person who defeated her, John Boozman, is not one of the vulnerable Republicans this year, because Arkansas has turned so deeply red. Not all 2010 freshman need to be vulnerable to make 2016 a bad year for Republicans.)

Lincoln was a classic conservative Democrat. For example, she joined Arizona Republican Jon Kyl in cosponsoring an absurd reduction in the estate tax. She also voted against the Obama Administration on a bill to
bring Gitmo detainees to the U.S. for trial, and she managed both to
vote for and against the Affordable Care Act. She had also
threatened to filibuster any health care bill that included a "public
option." (After leaving office, she worked with an affiliate of the National Federation of Independent Business, the plaintiff in the first major Supreme Court challenge to the ACA.)

But even though Lincoln was already pretty unreliable to her fellow Democrats, she started to flail about as she faced political extinction, trying to distance herself from her party -- and especially President Obama -- to try to induce her increasingly right-wing constituents to ignore her party label. They were not impressed, and she lost by more than twenty percentage points.

I am sure that there are nuances about the Lincoln reelection campaign that could add more texture to the story, but the bare facts are enough to make the point. Lincoln and similarly doomed colleagues in 2010 responded to their unavoidable extinction by trying to move to the right (even further to the right, in Lincoln's case), undermining the Democrats' ability to move their agenda forward in 2009 and 2010, while they held majorities in both houses of Congress.

Of course, the most conservative Democrats have already been defeated, so there will be no direct analogue to Lincoln in 2018. But because the Democrats will only have a few votes to spare, at most, in Senate roll calls, the important question is whether Democrats will fail to hold their caucus together for the important votes that will surely arise in 2017 and 2018.

As those doomed Democrats start to try to defy the electoral odds by proving their independence from Clinton and their party, will they think that they can save their skins by refusing to change the Senate's filibuster rules -- or, even if those rules are changed, by refusing to vote for Clinton's nominees?

All of which raises an interesting strategic possibility for Democrats. Rather than following the usual strategy or tossing sure losers overboard while focusing resources on winnable races, the Democrats might instead want to guarantee the loyalty of their doomed colleagues by promising to throw away money and resources on their reelection campaigns.

After all, if Senator X is up for reelection in a reddish state, and national Democrats say, "Sorry, you can't be saved," a highly plausible response by Senator X is to try to save herself, in whatever ways are available. But if Democratic leaders can instead credibly say, "Stick with us, and we'll stick with you, in a way that will win you more votes than by pointlessly chasing your opponent to the right," then maybe their colleagues will be less tempted to stray. Oddly, then, in order to get anything done in 2017 and 2018, the Democrats might need to promise to do electorally foolish things during the 2018 mid-term campaigns.

I am not a political strategist, and I am sure that the people who make these political deals are aware of all of the strategies for keeping people in line. The broader point, however, is that if Democrats wake up on November 9 to President-Elect Clinton and at least four newly elected Democratic Senators, they should not assume that they will be able to hold their new majority together, even briefly.

Tuesday, July 19, 2016

by Michael Dorf
In an insightful new essay in The Yale Law Journal Forum, Prof. Laurence Tribe argues that separation-of-powers doctrinal analysis over the last six-plus decades has been limited by the elegant but incomplete tripartite framework set forth in Justice Robert Jackson's concurrence in The Steel Seizure Case. Recall that Jackson distinguished three categories of cases: (1) The president has maximum power when Congress expressly authorizes presidential action, thereby adding its delegated powers to the inherent powers of the president; (2) when Congress is silent, the president can only exercise his own inherent powers, although there is, in Jackson's phrase, "a zone of twilight" in which "congressional inertia, indifference or quiescence" can enhance presidential power; and (3) the president's power is at "its lowest ebb" when the president acts contrary to the "express or implied will of Congress." While noting the appeal of Jackson's "triptych," Tribe points to its limitations.

Tribe explains that the Jackson typology does not provide much guidance for the hardest cases--those in which Congress has provided little in the way of concrete guidance. In such (zone 2) cases, saying that the president's power is in a middle range is restating the problem, not solving it. Moreover, as Tribe notes, by suggesting that the will of Congress can be inferred from actions in Congress short of the actual enactment of legislation, the Jackson zone 2 analysis threatens to circumvent the Article I, Sec. 7 lawmaking process. (A similar argument has also been advanced as a ground for textualism in statutory interpretation, most forcefully by Prof. John Manning.)

Tribe argues further that congressional silence and inexactitude may be the least of a president's worries. He approvingly cites the Buchanan/Dorf analysis of a potential debt-ceiling trilemma* as an especially acute example of this sort of problem: in a debt-celing crisis, Congress will have given the president mutually inconsistent instructions. But Tribe thinks that the same problem (albeit in less stark form) is present more frequently than we might realize. He writes: "Congress’s instructions—even when embodied in clearly stated enactments—frequently bear little relation to the facts on the ground and may indeed be internally inconsistent."

Tribe also points to what he calls the missing dimensions of Jackson's Steel Seizure framework. Where it is unclear what Congress has or has not authorized presidential policy, Tribe argues, the courts should look to the other two great principles of the Constitution besides separation of powers: federalism and individual rights. The inquiry into whether congressional silence should be treated as implicit acquiescence in or opposition to presidential action would, under Tribe's proposal, be informed by a kind of presumption in favor of preserving the sovereign prerogatives of the states and protecting the rights of individuals.

Tribe gives a number of illustrations of cases in which either federalism or individual rights should have acted as a thumb on the scale either for or against the exercise of presidential power. The essay is short and rewards reading, so I won't go into each. I will say that I am not entirely persuaded by his last example, drawn from the case of Zivotofksy v. Kerry (Zivotofsky II). There, the SCOTUS held that a federal statute permitting U.S. citizens born in Jerusalem to list "Jerusalem, Israel" as their birthplace on their passports infringed the president's power to recognize foreign sovereigns in light of the consistent executive policy of treating the status of Jerusalem as subject to international negotiations. Tribe expresses skepticism about the ruling on its own merits and also adds that the Court failed to consider the individual interests of the petitioner, Menachem Zivotofsky, and his parents.

Tribe does not say that Zivotofsky or anyone else has a free speech right to express the view that Israel is sovereign over Jerusalem on his passport. Nor would would such an argument be at all persuasive. If specialty license plates are government speech (as the Court held last year in the Walker case), then surely passports are government speech.

Tribe nonetheless finds that Zivotofsky had a due process right to have the administration consider his interest in expressing his and his family's views on his passport, because Congress created an entitlement to do so. Here is how he characterizes the interest:

Just as the Due Process Clause limited President Truman’s power to seize private property in Youngstown, so too the Clause should have given at least provisional protection to Zivotofsky’s “liberty” entitlement that had been granted by Congress through a specific statutory right to express, through an American passport, his family’s “conscientious belief that Jerusalem belongs to Israel.” Although Congress was under no constitutional obligation to grant the Zivotofskys that statutory entitlement to a facet of personal liberty, the Court should at least have considered whether the President had impermissibly conditioned the liberty entitlement on the family’s submission to the administration’s views about who was sovereign over East Jerusalem—views that the Zivotofskys sought, partly on religious grounds, to contradict.

Note that Tribe does not exactly say that Zivotofsky had a procedural due process right. Instead, drawing on an important article he wrote over forty years ago, he describes the interest as sounding in "structural due process." Although I am generally sympathetic to the concept of structural due process, I confess to being unsure about how it aids Zivotofsky. Tribe appears to be saying that neither the executive branch nor the Court paid adequate attention to Zivotofsky's congressionally recognized entitlement. With respect to the executive, he states: "In Zivotofsky II, the Executive justified its decision to disregard the family’s [statutorily authorized] request to list Israel as their son’s birthplace on the ground that the structural separation of powers precluded Congress from passing [the statute] in the first place."

That characterization strikes me as incomplete. The executive believed it had the power to deny Zivotofsky's request notwithstanding the statute because it thought the statute unconstitutional, but that's not why the executive denied the request. The request was denied because of a judgment by the executive that printing "Jerusalem, Israel" on U.S. passports would subtly undermine U.S. foreign policy with respect to Israel and Palestine. Maybe that judgment was wrong. Or maybe the Court was wrong in Zivotofsky II to think that the president's recognition power encompasses what appears in the place-of-birth field in a passport. But if the Court would have been right about that conclusion in the absence of any individual interests, it's not clear to me that the fact that Congress conferred a statutory right on people like Zivotofsky changes the calculus.

By analogy with procedural due process, structural due process could be said to require that the liberty-denying branch (here the executive) give a fair hearing and careful consideration to the reasons for denying liberty (here the statutorily-granted liberty to express a view about the status of Jerusalem on a passport), but it appears that the executive did give a fair hearing and careful consideration to the reasons. U.S. policy with respect to Jerusalem and the Israel/Palestine conflict is among the most intensely debated and scrutinized questions we have. Candidates for office take positions on, for example, whether to recognize Jerusalem as Israel's capital. There is no reason to think that the State Department and the president, in denying the request of Zivotofsky and similarly situated individuals, made the sort of arbitrary or thoughtless decision that would be analogous to a procedural due process violation.

That said, I agree with Prof. Tribe's other examples and also with the general lesson he draws from his consideration of Zivotofsky II: that the rights and interests of individuals ought to figure in the resolution of otherwise difficult zone 2 separation-of-powers cases. I likewise agree with his view that federalism should be added to the mix. His addition of these dimensions to Jackson's triptych is not only, as he puts it, a "friendly amendment" to the doctrine; it is a welcome amendment.

---------

* Prof. Tribe's Yale Law Journal essay approves of the Buchanan/Dorf framing of a debt-ceiling crisis as a trilemma and describes our proposed solution that spending in excess of the debt ceiling in accordance with appropriations laws would be the least unconstitutional option. The essay does not say whether Tribe agrees with that solution, noting only that the courts have not ruled on the question. I had a preview of the essay in the form of Tribe's keynote address at a conference I attended in April (and blogged about here). In his oral remarks, Tribe said that he agreed with the Buchanan/Dorf view of the problem as a trilemma, but that he was not persuaded by our solution. I would be delighted to learn that we had persuaded him of our solution, but I doubt that his omission of his view about the best resolution to the trilemma reflects a change of mind. I suspect it simply reflects a desire to avoid a tangential discussion in the essay.

Monday, July 18, 2016

by Michael Dorf
The failed coup d'etat in Turkey is not a metaphor, nor is it chiefly an object lesson for the rest of the world. It is chiefly a very serious threat to democracy and order in Turkey. In thinking about the consequences of the coup attempt and its aftermath, my first concern is for the safety and wellbeing of the people of Turkey.

There is also reason to worry about the implications for the rest of the world. The internecine struggle for control of the military comes at a time when Turkey faces extraordinary military and humanitarian crises due to the civil war in neighboring Syria and amidst renewed hostilities between the Turkish military and the PKK. The danger of spillover from this NATO ally is serious.

An under-appreciated aspect of the contercoup in Turkey is its potential impact on civil liberties. Long before the failed coup, the Erdogan government showed that while it was elected, it was hardly supportive of liberal democracy. There is thus a very serious risk that Erdogan will take the opportunity of the legitimate concern about the military challenge to civilian rule to crack down still further on the peaceful opposition--even if there is no evidence that many of the people who will now be rounded up supported the coup. From all appearances, the democratic opposition to Erdogan opposed the coup. But elected authoritarians are as likely as unelected authoritarians to settle scores and strengthen their hand when the opportunity presents itself.

Put differently, although the failed coup in Turkey is in some obvious sense the opposite of the successful 2013 coup in Egypt, going forward they may have similar consequences. In both cases, members of the military sought to displace an elected Islamist government. The Egyptian coup succeeded where the Turkish coup failed because the Morsi government was more unpopular than the Erdogan government and also because el-Sisi consolidated support of the military before acting, whereas the coup plotters in Turkey did not. Yet these opposite outcomes could lead to mirroring results. In both Egypt and Turkey, crackdowns on all dissent will be justified as necessary to maintain stability and order.

These facts are chiefly a matter of grave concern for the people of Turkey and Egypt, but they also pose foreign policy challenges for the United States. Both countries have been key to U.S. foreign policy. The instability in Turkey interrupted U.S. anti-ISIS airstrikes from Turkey, but there are deeper challenges. Egypt and especially Turkey have been more reliable allies than U.S. frenemy Pakistan, but in each case there is also friction due to their records on human rights.

The Erdogan government's request that the U.S. arrest and hand over Fethullah Gulen is the immediate face of the problem. While it may be possible for the U.S. to look the other way when our ostensible allies violate the values we hold in their own countries, it is quite another thing for the U.S. to extradite a person who has been living here legally. Erdogan put his request in language that will heighten the friction, sending what he called "a message for Pennsylvania." Perhaps Erdogan has credible evidence that Gulen organized the coup, but if not, we may find U.S.-Turkish relations strained sooner rather than later.

Even if the handling of Gulen goes smoothly, it should be evident that the relationship with Turkey requires very careful management. Which brings me, finally, to the eight-hundred pound orangutan in the room: the man who could be in charge of that and other U.S. foreign relationships come January.

In his rambling speech supposedly introducing Mike Pence as his running mate, Donald Trump said the following about the coup in Turkey: "It looks like they’re resolving the difficulty. I wish them well. There was a lot of anguish last night but hopefully it’ll all work out." On the plus side, nothing in those sentences is racist, otherwise offensive, or patently untrue. However, there is also nothing in any of those statements that suggests that Trump has the slightest idea of the actors or stakes in Turkey and the region. Indeed, I would be surprised if Trump could locate Turkey on a map.

Sunday, July 17, 2016

[Steve Sanders is Associate Professor and Henry H.H. Remak Distinguished Scholar at the Indiana University Maurer School of Law.]

Thanks to Mike for allowing me the opportunity to reply to my friend Eric Segall's thoughtful post about Justice Ginsburg and Donald Trump.

In an essay last week for the Huffington Post, I argued that erasing the line between jurists and politicians would be a bad idea for progressives. In an era of gerrymandered right-wing domination of Congress and most state legislatures, we need a judiciary with the respect and authority to protect rights and liberties. Lower courts do much of this work. Justice Ginsburg's indiscretion, I suggested, endangered not only the Supreme Court but the legitimacy of an independent judiciary generally.

Eric is comfortable with Supreme Court Justices commenting on electoral politics. It is healthy, he says, for them to be "open and transparent about the reasons, all the reasons, for their decisions." Yet he does not suggest that lower-court judges should be allowed the same liberty. The Supreme Court, he holds, is sui generis. In this post, I want to suggest that, at least when it comes to jurists meddling in politics, the differences are not so great. The Justices should refrain from partisanship for the same reasons all other judges are expected to do so.

Eric asks, "Why do we have to formally pretend that the Justices don't have prior values which in cases they care about drive their decisions?" But the Justices are not unique in that regard. Most judges have prior values that influence their thinking.

Any appellate lawyer knows a "good panel" from a "bad panel." On many matters, a panel with a majority of judges like Stephen Reinhardt, Marcia Berzon, or Guido Calabresi is likely to deliver a different result than one dominated by the likes of Diarmaid O'Scannlain, Jeffrey Sutton, or Diane Sykes. Like Supreme Court Justices, many lower court judges bring political values to their work.

Moreover, some judges allow their own distinctive philosophies and policy thinking to shape their work. For example, just read Richard Posner's brutally rigorous take-down of Indiana and Wisconsin's laws against gay marriage (or, for that matter, any number of other Posner opinions). Richard Posner is a smart and interesting guy, and I think we'd all enjoy hearing his thoughts about Donald Trump. But I don't think Eric would deem that proper. (It is no answer to say that lower court judges are bound by the judicial code of conduct while Supreme Court Justices are not. We're debating here about principles, not technicalities.)

So why wouldn't it be democratically salubrious to free all federal jurists from the obligation not to engage in partisan advocacy -- or go even further and allow them to talk openly about cases -- since most have prior values that influence their decisions? The answer, of course, is that such a state of affairs would be unimaginable in our system. It would magnify and exaggerate the role that ideology plays in judicial decision making. It would be the end of any idea of a fair and impartial federal judiciary.

Why, then, should we expect less discipline from members of the Supreme Court? Eric argues the Supreme Court is different: "The Justices," he says, "are not bound by prior cases and are free to impose their values writ large as they see fit." But surely this overstates the degree of freedom the Justices actually have.

Yes, the Justices have the power to abandon stare decisis, but they rarely do. As David Strauss has argued, precedent and incrementalism are central to the common-law method of constitutional interpretation that best describes the Court's actual practice. Moreover, the Justices must explain their decisions in writing, using recognized tools of legal analysis, so their colleagues and the rest of us can evaluate and critique them. Yes, critics on both the left and right can cite egregious examples of "judicial activism," but it is well accepted that the Court rarely strays too far from what the public is ready to accept. And the Justices are constrained by the "rule of five" -- it takes a majority, after all, to do anything.

I admire and accept much of Eric's book-length examination of what makes the Supremes unique among courts (or, as he would say, not a court at all). But I cannot join him in making the leap that because so much of what they do involves making normative judgments about policy, the Justices are therefore entitled to be public partisans off the bench. To reason that the Supreme Court institutionally is already a "political" body, therefore the Justices individually are entitled to be "political" off the bench, seems to me a bit too simple.

It overlooks institutional and practical constraints that bind the Court but not the Justices as persons. It ignores the fact that sexy, ideologically charged cases are only a fraction of the Courtís work. It glosses over important times (e.g., the Chief Justice with Obamacare, Anthony Kennedy with affirmative action) when the Justices depart in their official capacities from the preferences we assume they hold in their individual capacities. It equates a breezy riff in a chat with a chummy journalist to highly consequential legal conclusions that emerge as the products of what we hope is a serious judicial and political philosophy.

When Justices want to explain their philosophies, they write books or give speeches. We already have opportunities to take their measure and understand their minds. It's simply that partisan advocacy has always been off limits.

And the game is not worth the candle. Admit it: we learned nothing useful or surprising about Justice Ginsburg's politics. We were merely titillated, while a few realist law professors -- along with some right-wing Court-haters -- felt a frisson of validation. The unplugged RBG did not mount an argument for Hillary Clinton or the merits of a Democratic executive branch. She merely observed that Donald Trump is a menace and a fraud, something that was already obvious to many people.

On the other side of the ledger is the damage done to public confidence in the role that judges -- all judges -- play in the constitutional scheme. Many of the people who question the legitimacy of the Supreme Court also resent the larger principle of a life-tenured judiciary that is insulated from political retribution. In short, the price of cheering on Justice Ginsburg's foray into punditry is just too great.

We all must separate our personal enthusiasms from our professional responsibilities. While I personally think it would be great fun to have members of the Supreme Court spend their weekends doing the McLaughlin Group, as a law professor and member of the bar I think that would be a very bad idea.

Friday, July 15, 2016

How does a reliably liberal and feminist Supreme Court Justice get the New York Times Editorial Board, the Washington Post Editorial Board, and approximately 95% of Supreme Court commentators and law professors (most of whom reside on the left) to take sides with Donald Trump and against her? Unless you have been on a remote desert island for the last week (with no internet service), you know the answer is by that Justice speaking out on a matter of national politics (in this case the upcoming election and Trump's potential to basically destroy both the Court and our country). Of course, Justice Ginsburg walked back the comments yesterday by saying that they were "ill-advised," that she "regretted making them" and that judges should avoid "commenting on a candidate for public office."

The Times said she shouldn't have flung herself "into the mosh pit" of national politics while progressive legal scholars like my friend Professor Steve Sanders warned that Supreme Court Justices should "never wrestle with a pig because you only get dirty and the pig enjoys it." More seriously, Sanders was worried that the judiciary needs to be independent to perform its job, and that judges must at least appear to remain above normal politics; otherwise the people will lose faith in their decisions.

There is a judicial code of conduct that clearly states federal judges shouldn't make public comments supporting or opposing candidates for elected office. These rules, however, according to both the Chief Justice of the United States and the American Bar Association, do not apply to the Supreme Court. One lesson of this entire episode is that, as I've written here before, the Court needs to formally adopt its own binding Code of Ethics. Right now, the Justices stand above the law when it comes to their ethical responsibilities. That is a bad example for our nation's highest Court to set.

Should Justice Ginsburg have spoken out is of course the real question. One of the leading experts on legal ethics in the country, Professor Steve Gillers, said no because the "rule of law" requires "the public to view judicial rulings solely as the product of law and legal reasoning, uninfluenced by political considerations. Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated." Professor Sanders agrees, writing that we need the public to trust the Court because the Justices are our best bulwark against tyranny, and without them we wouldn't have same-sex marriage, the right to choose, and other outcomes that progressives favor. In his words, "progressives do not want to live in a world where we have completely erased the line between politicians and judges." I assume Professor Sanders would agree that most conservatives don't want to live in that world as well.

Notice that neither Professor Gillers nor Professor Sanders actually said that Court decisions are free of political and even sometimes partisan influence, just that the public needs to believe that is the case. Revisiting two landmark Supreme Court cases, Bush v. Gore, and Texas v. Johnson, I think shows the dangerous Emperors-New-Clothes aspects of this argument.

In Bush v. Gore, the Justices handed George W. Bush the 2000 election based on what most people think were quite sketchy constitutional arguments. We all know (or at least are petty sure) that at the time all five Justices in the majority (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) all thought the country was better off with a Bush rather than a Gore Presidency while the four dissenters (Ginsburg, Stevens, Breyer, and Souter) would have preferred the opposite outcome. What is to be gained by the Justices pretending that law rather than all things considered values (including law) drove the decision? The Supreme Court is just not like other courts. It has the last word, it is not bound by precedent, and its decisions are national in scope. Other than the requirement that an injured plaintiff bring a suit to the Court, it is in fact a national veto council in constitutional law cases. Why keep pretending that it is not?

Justice Scalia was fond of citing Texas v. Johnson, where the Court struck down a Texas law forbidding flag burning, for the proposition that he would follow the law wherever it leads, not his own personal values because, even though he joined the majority, if he "were King [he] would send the guy to jail."

This argument is silly. Justice Scalia joined the majority not because the law made him do it but because, all things considered, he would rather live in a country where flag burning is legal because speech values are that important to him. Justice Stevens and three other Justices reached exactly the opposite conclusion in dissent. Had the Justices been sitting on an official veto council rather than a "court of law" I'm pretty sure the votes of each Justice would have been exactly the same.

So, back to Justice Ginsburg. We know that she would rather have Hilary Clinton as President rather than Donald Trump, and we know that in virtually any case that came before her where that choice was presented she would vote for Hilary. What are we teaching our children and the "public" referred to by Professor Gillers when we demand that she not admit what is really true? Why do we have to formally pretend that the Justices don't have prior values which in cases they care about drive their decisions. As Professor Mark Tushnet put it so well, why do "people who acknowledge that Justices have political views that do influence their decision-making think there's something important about maintaining the facade that they don't?"

There is great separation-of-powers and federalism value in having a third branch of government act as a veto council over the other two branches and the states. We live under a written Constitution which needs to be enforced. Parts of that Constitution smack of law and are easily enforced (two Senators from every state, President has to be 35, etc.,) and parts sound more like broad aspirations (guarantees of freedom of speech and religion, equal protection, due process, etc.). The Justices are not bound by prior cases and are free to impose their values writ large as they see fit. Contrary to Professors Gillers and Sanders, I think the American people would accept their decisions even if the Justices were open and transparent about the reasons, all the reasons, for their decisions. And, if I'm wrong, shouldn't the "public" decide?

I wish Justice Ginsburg had not apologized because I think honesty and transparency are more important than illusions and myths.